Order Code RS20898
CRS Report for Congress
.Received through the CRS Web
Elections Reform: Overview and Issues
Updated June 29, 2005
Kevin J. Coleman and Eric A. Fischer
Analyst in American National Government
and
Updated May 14, 2007
Elections Reform: Overview and Issues
Kevin J. Coleman
Analyst in American National Government
Government and Finance Division
Eric A. Fischer
Senior Specialist in Science and Technology
Government and Finance Division
and Resources, Science, and Industry Division
Summary
Since the November 2000 Presidential election, previously obscure details of
voting and vote counting have become the focus of ongoing public attention and
legislative action at the state and federal levels. Some states made plans or began to
replace voting equipment and adopt other improvements before the 2002 election cycle.
Both sessions of the 107th Congress considered and debated federal election reform
legislation, and theThe Help America Vote Act (HAVA,
P.L. 107-252) was enacted in
October 2002. The act created a new federal agency with election administration
responsibilities, set requirements for voting and voter-registration systems and certain
other aspects of election administration, and provided federal funding; but it did not
supplant state and October 2002, and states have made many changes to
election laws and procedures before and since. HAVA created a new federal agency;
set requirements for voting, voter-registration systems, and other aspects of election
administration; and provided federal funding. However, it did not supplant state and
local control over election administration. Issues forin the 108th
Congress included funding, establishment of the new agency, and implementation by
and impacts on the states. Those issues remain for the 109th Congress, with additional
emphasis on the January 2006 deadline for states to meet several HAVA requirements
and the controversy over paper audit trails for electronic voting systems. Several bills
have been introduced to address those and other issues. This report will be updated
periodically to reflect new developments109th Congress included state
compliance with HAVA requirements, voter identification and citizenship requirements
for voting, funding, and paper audit trails for electronic voting systems. In the 110th
Congress, the Senate Rules and Administration Committee held a hearing on the
reliability of electronic voting machines on February 7, 2007. The House
Administration Committee has held four hearings1 on the issue and ordered reported an
amended version of H.R. 811, the Voter Confidence and Increased Accessibility Act of
2007, on May 8. The bill would require the use of paper ballots and mandatory partial
recounts in federal elections.
Voting Systems and Election Administration
Elections in the United States are administered at the state and local level, and the
federal government had not historically set mandatory standards for voting systems, nor
had it provided funding to state and local jurisdictions for the administration of elections.
HAVA changed that. While initial reactions after the 2000 election had tended to focus
on technological fixes such as eliminating punchcards, a consensus emerged subsequently
that the issues, and the solutions needed, were more complex and often involved tradeoffs among diverse goals. HAVA reflects those developments — it funded replacement
of punchcard and lever systems but also broader improvements in election administration.
Congressional Research Service ˜ The Library of Congress
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Kinds of Voting Systems. Currently, five technologies are used — paper ballots,
lever machines, punchcards, optical scan, and direct recording electronic (DRE) systems.
Most states use more than one kind. Each system has advantages and disadvantages with
respect to error rates, cost, speed, recounts, accessibility to disabled persons, and other
characteristics. Differences in actual performance in elections are difficult to measure
accurately and depend on many factors, such as the design and condition of the system,
the familiarity of voters with it, the complexity and design of the ballot, local standards
and practices, and the level of competence and preparation of officials and pollworkers.
There is no consensus on whether any one technology is best, although use of optical
scan and DRE systems has been increasing for several years. States have different
practices and requirements, such as whether the full ballot must be displayed on one page,
whether votes are tabulated in precincts or centrally, whether straight-ticket voting is
allowed, and how accessibility requirements are to be met. Local jurisdictions also differ
in how they configure and use the systems to meet local needs. HAVA does not require
any trade-
1
The hearings, by the Subcommittee on Elections, were held on March 15, 19, 20, and 23, 2007.
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offs among diverse goals. HAVA reflects those developments — it funded replacement
of punchcard and lever systems but also broader improvements in election administration.
Voting Systems. Currently, most jurisdictions use optical scan, direct recording
electronic (DRE) systems, or both. There is no consensus on whether any one technology
is best, although use of optical scan and DRE systems has been increasing for several
years. States have different practices and requirements. HAVA does not require any
particular voting system, but it sets requirements that influence what systems election
officials choose. Beginning in 2006, systemsSystems used in federal elections must provide for
error correction by
voters, manual auditing, accessibility, alternative languages, and
federal error-rate standards.
Systems must also maintain voter privacy and ballot
confidentiality, and states must adopt
uniform standards for what constitutes a vote on
each system.
Electronic Voting Machine Controversy. The HAVAHAVA’s requirement for
accessible accessible
voting systems (at least one per polling place) and other factors have begun
to drive states to adopt DREs. However, controversy exists about how secure those
systems are from tampering. Some experts drove some states to adopt
DREs, but controversy exists about the security of those systems. Some experts and
advocates believe that the problem is serious enough to
require changes in the systems before they are more widely adopted, ranging from more
sophisticated computer security to the printing of paper require that DREs also print paper
ballots that would be verified by
the voter and hand-counted if the election results were
contested. Others believe that
procedural and other safeguards can make DREs
sufficiently safe from tampering, that use
of printed paper ballots would create too many
problems, and that the controversy risks
drawing attention away from the demonstrated
utility of DREs in addressing known
problems of access to and usability of voting systems. One state, Nevada, required DREs
to provide a voter-verified paper trail for the November 2004 election. Several additional
states have since instituted related requirements. The Senate Rules and Administration
Committees held a hearing on the paper audit-trail issue on June 21, 2005. See CRS
Report RL32139 for discussion of these issues.
Federal Funding. A central issue has been what role the federal government
should play in addressing the concerns that have been raised about voting systems,
particularly with respect to funding and standards. HAVA authorizes $3.86 billion in
funding for programs to replace equipment, improve election administration, improve
accessibility, recruit pollworkers, and perform research and pilot studies. (See “Funding
Under the Help America Vote Act,” below.)
New Agency. Federal activities relating to election administration were previously
performed by the Office of Election Administration (OEA) of the Federal Election
Commission (FEC). Other than the voluntary voting system standards, those activities
were limited to clearinghouse functions and some administrative responsibilities under the
National Voter Registration Act (P.L. 103-31). HAVA replaced the OEA with the
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Election Assistance Commission (EAC), an independent, bipartisan federal agency, and
authorized funding for it through FY2005. Members are appointed to four-year terms and
may be reappointed once. The act also established two boards, with broad-based state and
local membership, and a technical committee, to address aspects of voting system
standards and certification. The main duties of the EAC include carrying out grant
programs, providing for testing and certification of voting systems, studying election
issues, and issuing voluntary guidelines for voting systems and the requirements in the act.
The commission does not have any new rule-making authority and does not enforce
HAVA requirements. The law provides for technical support and participation by the
National Institute of Standards and Technology (NIST) in relevant commission activities.
The EAC has held several additional public meetings and hearings on issues such as the
security of electronic voting systems and best practices in election administration. It
released a recommended set of best practices for local election administrators in August
2004. The EAC boards and technical committee have also met, and the agency has
distributed requirements payments (see section on funding below).
Standards and Requirements. In the 1980s, the FEC developed voluntary
standards for computer-based voting systems, although not for voter registration systems.
Most states have now adopted those standards, which were updated in 2002. HAVA
codifies the development and regular updating of those standards, which it calls voluntary
guidelines. It also establishes federal requirements for voting systems, registration,
provisional ballots, and other aspects of election administration. It leaves the methods of
implementation to the states but requires the EAC to issue voluntary guidance. The EAC
issued its voluntary voting system guidelines for public comment on June 27, 2005. The
act establishes two enforcement processes. The U.S. Attorney General may bring civil
action with respect to the above requirements, and states, as a condition for receipt of
funds, are to establish administrative grievance procedures to handle complaints from
individuals.
Congressional Authority. Some observers expressed concern before HAVA over
Congress’s authority to require states to meet election administration standards. However,
the U.S. Constitution gives Congress the authority to regulate congressional elections (see
CRS Report RL30747). Prior examples of Congress’s use of that authority include, among
other laws, the Voting Rights Act (see 42 USC 1973; and CRS Report 95-896), which
prohibits discriminatory voting practices and, and the Voting Accessibility for the Elderly
and Handicapped Act, which sets some requirements for elections with respect to
accessibility (see 42 USC 1973aa-1a, 6, and ee). Congress can also attach conditions to
the receipt of any funding, such as for voting systems or election administration. Such
conditions are included in HAVA, for example, with respect to the grievance procedures
described above.
Alternative Methods for Voting
Absentee Voting. Voters in many states can request an absentee ballot only for
specific reasons that would prevent the voter from casting a ballot in person. But many
states now allow any voter to request such a ballot, sometimes called “no fault” absentee
voting. Oregon conducts its elections entirely by mail — all registered voters receive their
ballots through the Postal Service — and the percentage of votes cast via absentee ballot
has increased in other states, especially Washington and California, over the past several
elections. Some observers have expressed concerns that absentee voting is more
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vulnerable to certain kinds of fraud and coercion of voters than is balloting at the polling
place, but the trend toward increased absentee voting is expected to continue.
Early Voting. In some states, voters may cast a ballot in person before election day
through an early voting program. There are many approaches, and the number of states
HAVA requires a paper audit trail for the voting system, but not paper ballots. However,
many states have instituted paper-ballot-trail requirements.
Several bills introduced in recent congresses would address this issue. Most,
including H.R. 811, would require a specific design standard for paper ballots rather than
setting a performance standard that can be met in different ways, which was the approach
taken by HAVA with respect to voting system requirements. Proponents of paper ballots
argue that a legislated design standard is the only way to ensure that voting systems
exhibit the desired level of verifiability and security. Opponents argue that such a design
standard freezes technology and stifles innovation, thereby precluding the development
and implementation of technologies with superior levels of verifiability and security than
is possible with current technology. See CRS Report RL33190, The Direct Recording
Electronic Voting Machine (DRE) Controversy: FAQs and Misperceptions, for further
discussion of this controversy.
Federal Funding. A central issue has been the role of the federal government in
addressing concerns about voting systems, particularly with respect to funding and
standards. HAVA authorized $3.86 billion in funding for programs to replace equipment,
improve election administration, improve accessibility, recruit pollworkers, and perform
research and pilot studies. (See “Funding Under the Help America Vote Act,” below.)
Election Assistance Commission. Before HAVA, federal activities relating to
election administration were performed by the Office of Election Administration (OEA)
of the Federal Election Commission (FEC). Other than the voluntary voting system
standards, OEA performed clearinghouse functions and some administrative activities
under the National Voter Registration Act (P.L. 103-31). HAVA replaced the OEA with
the Election Assistance Commission (EAC, [http://www.eac.gov]), an independent,
bipartisan federal agency. The act also established two boards, with broad-based state and
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local membership, and a technical committee, to address aspects of voting system
standards and certification, and it provides for technical support and participation by the
National Institute of Standards and Technology (NIST, see [http://vote.nist.gov/]). The
EAC carries out grant programs, provides for testing and certification of voting systems,
studies election issues, and issues voluntary guidelines for voting systems and guidance
for the requirements in the act. The EAC has no rule-making authority and does not
enforce HAVA requirements. The act established two enforcement processes. The U.S.
Attorney General may bring civil action with respect to HAVA requirements, and states,
as a condition for receipt of funds, were required to establish administrative grievance
procedures to handle complaints from individuals. The EAC’s annual report to Congress
for FY2006 is available at [http://www.eac.gov/docs/EAC%20AR2006.pdf]).
Standards and Requirements. In the 1980s, the FEC developed voluntary
standards for computer-based voting systems, although not for voter registration systems.
Most states have now adopted those standards, which were updated in 2002. HAVA
codifies the development and regular updating of those standards, which it calls voluntary
guidelines. The EAC issued draft guidelines for public comment on June 27, 2005, and
adopted the final version December 13. They go into effect in December 2007. For more
information, see CRS Report RS21156, Federal Voting Systems Standards and
Guidelines: Congressional Deliberations; and CRS Report RL33146, Federal Voluntary
Voting System Guidelines: Summary and Analysis of Issues.
HAVA also establishes federal requirements for voting systems, registration,
provisional ballots, and other aspects of election administration. It leaves the methods of
implementation to the states but requires the EAC to issue voluntary guidance. See CRS
Report RL32685, Election Reform: The Help America Vote Act and Issues for Congress.
Congressional Authority. Some observers expressed concern before HAVA over
Congress’s authority to require states to meet federal election standards. However, the
U.S. Constitution gives Congress authority to regulate congressional elections (see CRS
Report RL30747, Congressional Authority to Standardize National Election Procedures).
Prior examples of Congress’s use of that authority include, among other laws, the Voting
Rights Act (see 42 USC 1973; and CRS Report 95-896, The Voting Rights Act of 1965,
As Amended: Its History and Current Issues), and the Voting Accessibility for the Elderly
and Handicapped Act, (see 42 USC 1973aa-1a, 6, and ee). Congress can also attach
conditions to the receipt of any funding, such as for voting systems or election
administration. Such conditions are included in HAVA, for example, with respect to the
grievance procedures described above.
Alternative Methods for Voting
Absentee Voting. Many states now allow any voter to request an absentee ballot,
sometimes called “no fault” absentee voting, and the percentage of votes cast via absentee
ballot has increased over the past several elections. Oregon conducts its elections entirely
by mail. Some observers have expressed concerns that absentee voting is more vulnerable
to certain kinds of fraud than is balloting at the polling place, but the trend toward
increased absentee voting is expected to continue.
Early Voting. In some states, voters may cast a ballot in person before election day
through an early voting program. There are many approaches, and the number of states
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using early voting is growing, with most states now having some form of it. Some
observers have criticized early voting as distorting to the electoral process and being open
to certain kinds of fraud and abuse. Proponents argue that early voting can increase
turnout and lessen the risk of certain kinds of distortions.
Internet votingVoting. The Arizona Democratic party conducted a March 2000 primary
using both primary in 2000 using
the Internet and traditional polling places. In and, in the November 2000 election, the
Defense Defense
Department conducted a small pilot program in which voters requested and
submitted submitted
ballots via the Internet; the experiment was slated . The program was to be repeated on a larger
scale in 2004 but was
cancelled, largely because of security concerns. Although interest
has grown, Internet voting from remote locationsBecause Internet voting raises concerns
about voter
identification, ballot secrecy, risk of cyberattack, and access for all potential voters. It is
voters, it is unlikely to be widely adopted until such problems are resolved (see CRS Report
RS20639). However,
some countries such as Switzerland have already adopted Internet voting on an
experimental basis. HAVA requires a study on this issue.
Funding Under the Help America Vote Act
HAVA established several grant programs (see table below for authorized amounts):
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Election Administration Improvements. Provided expedited, one-time
formula payments for general election administration improvements to
states that applied, with a $5 million minimum combined payment per
state for this and the replacement program below. Administered by
General Services Administration (GSA). (Sec. 101.)
Replacement of Punchcard and Lever Machine Systems. Provided
expedited, one-time formula payments to replace punchcard systems and
lever machines in qualifying states, with a $5 million minimum combined
payment per state for this and the improvements program above.
Administered by GSA. (Sec. 102.)
Payments to Meet Election Requirements. Provides annual formula
payments to states to meet the act’s requirements. Requires a 5% match
and submission of a state plan. Administered by the Election Assistance
Commission (EAC) created in the act (see below). (Sec. 251-258.)
Payments to Assure Accessibility. Provides payments to states to make
polling places accessible to persons with disabilities. Requires
application. Administered by Department of Health and Human Services
(HHS). (Sec. 265-265.)
Payments for Protection and Advocacy Systems. Provides payments to
state protection and advocacy systems to ensure electoral participation by
persons with disabilities. Requires application. Administered by HHS.
(Sec. 291-292.)
Grants for Research and Pilot Programs. Provides grants for research to
improve voting technology (Sec. 271-273) and for pilot programs to test
new voting technology (Sec. 281-283). Requires application.
Administered by EAC.
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Student Programs. Establishes three programs, one to recruit college
students as pollworkers (Sec. 501-503), one to recruit high school
students (Sec. 601), and one to provide grants for the National Student
and Parent Mock Election (Sec. 295-296).
Help America Vote Act (HAVA) Funding
Program
Total
Actuala
FY03-05
Total
325.0
325.0
325.0
325.0
Authorization ($millions) per Fiscal Year
2003
Election Administration
325.0
Improvement
Punchcard/Lever
325.0
Machine Replacement
Election Requirements
1,400.0
Accessibility
50.0
Protection and Advocacy
10.0
Research
20.0
Pilot Programs
0.0
College Program
5.0
High School Program
5.0
Mock Election
0.2
EAC
10.0
Total
2,160.2
2004
2005
1,000.0
25.0
10.0
600.0
25.0
10.0
b
b
b
10.0
1,045.0
b
b
b
10.0
645.0
2006
10.0
b
b
b
10.0
3,000.0 2,328.3
100.0
23.0
40.0+
7.0
20.0
10.0
5.0+
2.45
5.0+
2.25
0.2+
0.4
30.0
18.0
3,860.2+ 3,031.4
a: funds appropriated for FY2003 and FY2004, plus the Administration request for FY2005.
b: sums necessary.
+: amount shown plus sums necessary for subsequent years.
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Appropriations. The FY2003 omnibus appropriations bill (H.J.Res. 2, H.Rept.
108-10, P.L. 108-7), signed into law on February 20, 2003, contained $1.5 billion for
election reform programs authorized by HAVA, including:
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$650 million combined for the
election administration improvement and
voting system replacement payments to be
administered by GSA (with no
specific allocation designated for either program and a
maximum of
$500,000 for administrative costs).
GSA disbursed all of these funds to
states in June 2003. All states and territories received
payments for election administration
improvements, based on a formula using each state’s
voting age population. Payments for the replacement of voting-age population, and payments
to replace punch card and lever voting
systems were made to all states that applied for the program.
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. Also
included was $830 million for requirements grants (with a maximum of 0.1% to be paid
to any territory), and
$20 million for other programs — $13 million for accessibility
grants, $2
million for protection and advocacy programs, $1.5 million each for the
college college
and high school programs, and $2 million for the EAC.
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P.L. 108-7 also included $15
million for one-time payments to certain states that had
obtained optical scan or electronic
voting systems prior to the November 2000 election.
Help America Vote Act (HAVA) Funding
Program
Authorization ($millions) per Fiscal Year
2003
Election Administration
Improvement
Punchcard/Lever Machine
Replacement
Election Requirements
Accessibility
Protection and Advocacy
Research
Pilot Programs
College Program
High School Program
Mock Election
EAC
Total
2004
2005
2006
Total
Actual
FY03-06
Total
325.0
325.0
325.0
325.0
325.0
325.0
3,000.0
100.0
40.0+
20.0
10.0
5.0+
5.0+
0.2+
30.0
3,860.2+
2,328.3
54.9
21.7
1,400.0
50.0
10.0
20.0
10.0
5.0
5.0
0.2
10.0
2,160.2
1,000.0
25.0
10.0
600.0
25.0
10.0
a
a
a
10.0
1,045.0
a
a
a
10.0
645.0
10.0
a
a
a
10.0
2.4
2.2
0.4
48.0
3,107.9
a: sums necessary.
+: amount shown plus sums necessary for subsequent years.
The President’s budget request for FY2004 included $500 million, one-half the
amount authorized, to fund EAC requirements grants and administration. No funds were
specifically requested for the other programs described above. The final omnibus
appropriations bill, H.R. 2673, signed into law on January 23, 2004 (P.L. 108-199),
contained just over $1.5 billion for election reform, including $1.0 billion for requirements
payments, $500 million for election reform programs, $10 million for accessibility grants,
$5 million for protection and advocacy systems, and $1.2 million for the EAC.
For FY2005, the President’s budget request included $65 million for election
reform,
of which $40 million was additional funding for requirements grants and $10
million was
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for EAC administrative expenses. The request also included $5 million for
protection and
advocacy programs and $10 million for accessibility grants. The House
Transportation and Treasury Appropriations Subcommittee mark-up included an
additional $5 million for the EAC. The omnibus appropriations omnibus appropriations
bill for FY2005, H.R.
4818 4818, was signed into law on December 8, 2004 and included $14
million for the Election
Assistance CommissionEAC, of which $2.8 million was to be transferred to the National
Institute of Standards and TechnologyNIST, and $15 million
for disability voting access, with
$5 million of that amount to apply to protection and
advocacy systems. Also included was
$200,000 for the student parent mock election
program and $200,000 for the Help
America Vote College Program.
The President’s FY2006 budget request for FY2006 included $17.6 million for the EAC
“to develop voluntary standards and initiate an accreditation program for electronic voting
machines,” as well as $9.9 million for protection and advocacy programs and $5 million
for accessibility grants administered by HHS. The House appropriations bills include
$15.9 million for the EAC, of which $2.8 million is for NIST activities (H.R. 3058), and
the administration-requested amounts for HHS (H.R. 3010).
State Implementation of the Help America Vote Act
With the publication of state plans in the Federal Register on March 24, 2004,
states and territories were eligible to receive $2.3 billion in federal requirements payments,
following a 45-day public comment period and filing of a certification with the EAC. The
$2.3 billion includes funds appropriated in FY2003 and FY2004 which could not be
allocated until establishment of the EAC and publication of the state plans. As of June
2005, $2.2 billion in EAC-approved requirements payments had been distributed, with
$112 million remaining to be disbursed. (with
$2.8 million for NIST), as well as $5 million for protection and advocacy programs and
$9.9 million for accessibility grants administered by HHS. The final appropriation (P.L.
109-115) contained $14.2 million, including $2.8 million for NIST, with $13.5 and $8.6
million, respectively, for the HHS programs, and $250,000 “encouraged” to be spent on
the Help America Vote College Program.
On February 9, the Senate approved S. 2166, which would have provided $50 million
to states to restore or replace voting equipment and materials damaged by Hurricanes
Katrina or Rita. The bill was referred to the House Administration Committee on February
14. A similar amendment, for $30 million, was attached by the Senate to H.R. 4939, the
Emergency Supplemental Appropriations Act, but it did not survive conference.
The President’s FY2007 budget request included $16.9 million for the EAC (with $5
million for NIST), $4.83 million for protection and advocacy programs, and $10.89
million for accessibility grants administered by HHS. The House-passed appropriations
bills included $16.91 million for the EAC, with $4.91 million for NIST (H.R. 5576) and
$250,000 “urged” to be expended on the college program, and the administrationrequested amounts for HHS (H.R. 5647). The Senate Appropriations Committee approved
H.R. 5576 on July 20, 2006, and its accompanying report (S.Rept. 109-293) included $17
million for the EAC; the report noted that the bill required that $4.9 million from the EAC
appropriation be transferred to NIST. The 109th Congress adjourned without enacting
those bills, providing instead temporary funding until February 15, 2007, via a continuing
resolution (H.J.Res. 102). Continued funding through September 30 for FY2007 was
subsequently provided via another continuing resolution, H.J.Res. 20, which was signed
by the President on February 15 (P.L. 110-5). It provided $16.24 million for the EAC, of
which $4.95 million was for NIST, $4.83 million for protection and advocacy programs,
and $10.89 million for disability access.
The President’s FY2008 budget request includes $15.5 million for the EAC (with
$3.25 million for NIST), as well as $4.83 million for protection and advocacy programs
and $10.89 million for accessibility grants administered by HHS.
State Implementation of the Help America Vote Act
With the publication of state plans in the Federal Register on March 24, 2004, states
and territories were eligible to receive $2.3 billion in federal requirements payments,
following a 45-day public comment period and filing of a certification with the EAC. The
$2.32 billion includes funds appropriated in FY2003 and FY2004 which could not be
allocated until establishment of the EAC and publication of the state plans. The EAC
distributed all of that funding to states by December 2005; no additional funding for
requirements payments has been appropriated.
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